Saurabh Agrawal vs Vipin Kumar Jha
2022 Latest Caselaw 510 Chatt

                                           1

                                                                                     AFR

                  HIGH COURT OF CHHATTISGARH, BILASPUR
                             First Appeal No.62 of 2017
                        (Judgment Reserved on 06.01.2022)
                        (Judgment Delivered on 28.01.2022)

     Saurabh Agrawal S/o Shri Ramanand Agrawal, Aged About 38 Years
      Occupation Advocate, R/o Turi Hatri Purani Basti, Raipur Tahsil And District
      Raipur Chhattisgarh ...... Defendant No. 1

                                                                           ---- Appellant

                                        Versus

   1. Vipin Kumar Jha S/o Late Prabhat Kumar Jha, Aged About 48 Years R/o Shanti
      Chowk Purani Basti, Raipur, Tahsil And District Raipur Chhattisgarh ..... Plaintiff,

   2. State Of Chhattisgarh Through The Collector, Office Of The Collector, Raipur
      Tahsil And District Raipur Chhattisgarh ...... Defendant No. 2

                                                                       ---- Respondents

For Appellant                      :      Shri Sourabh Sharma, Advocate


For Respondent No.1                :      Shri Manoj Paranjpe, Advocate along with
                                          Shri Anurag Singh, Advocate


For Respondent/State               :      Shri Raghvendra Verma, GA



                       Hon'ble Shri Justice Goutam Bhaduri

                        Hon'ble Smt. Justice Rajani Dubey

                                   CAV Judgment


Per Goutam Bhaduri, J

   1. Heard.

2. This is an appeal against the judgment and decree passed by the First

Additional District Judge to the Court of Second Additional Judge, Raipur in Civil

Appeal No.51-A/2014 dated 02.01.2017.

3. The present appeal has been filed by the defendant against the judgment and

decree of specific performance.

4. The brief facts of the case are that:-

(A) The appellant/defendant had entered into an agreement of sale of his

lands bearing Khasra No.30/2, admeasuring 0.114 hectare and Khasra

No.30/8 admeasuring 0.016 hectare total area admeasuring 0.130

hectare i.e. 32 decimal i.e. 13940 sq. feet on 02.12.2011. By way of

earnest amount of Rs.3,51,000/- and on 31.12.2011 two cheques of

Rs.75000/- each was paid to the seller. The total consideration being

part payment was of Rs.5,01,000/-. According to the pleading of plaintiff,

one of the conditions of the sale was that the sale deed can be

registered in name of any other person in whose favour the seller wants.

According to the agreement of sale the sale deed was required to be

registered by 30th March, 2012 and it was the duty of the defendant/seller

to get the necessary permission from the revenue officers including the

permission of column No.14 which is required for registration of sale.

According to the agreement before registration of the sale, the land was

required to be measured and the remaining part of sale consideration

was to be paid reciprocal to the area available after demarcation. The

plaintiff/purchaser contended that he supplied all the necessary

documents to the defendant/seller for execution of sale deed and the

plaintiff was ready and willing to perform his part of contract but the

defendant/seller failed to do it. It is stated that the necessary permission

to sale the land in favour of one Rashmi Mishra was given to the

purchaser/plaintiff on 31.03.2012 at 6' O clock by the seller and on

31.03.2012 there was a bank holiday and 01.04.2012 was Sunday, as

such the remaining sale consideration amount could not be paid. The

plaintiff contended that the defendant refused to accept the amount by

cheque. It was contended that on opening working date on 03.04.2012

the plaintiff/purchaser went with the payment and requested for

registration of sale of the land but the defendant refused.

(B) It was further contended that the seller had earlier entered into an

agreement for sale of the same land with one Basant Kumar Dewangan.

The said Basant Kumar Dewangan made certain complaint to various

authorities but despite such complaint having come to an end after the

enquiry on some pretext or the other the seller avoided to execute the

sale. Eventually a notice dated 30.04.2013 was sent by the purchaser

through his advocate which was replied by the seller on 15.05.2013,

wherein it was stated that the last date was on 30.03.2012 and time was

the essence of contract as such refused to execute the sale deed.

Eventually, the suit was filed.

5. As per the case of the defendant/appellant, the agreement dated 02.12.2011 is

not in dispute. It was contended that pursuant to the agreement initially an

amount of Rs.3,51,000/- thereafter Rs.1,50,000/- was received. The defendant

contended that as per the demand of the plaintiff/purchaser the plaintiff had

substituted the purchaser as one Smt. Rashmi Mishra to be the purchaser and

the said information was given to the defendant/seller on 16.03.2012 and it was

told by the plaintiff that the sale deed to be registered in name of Rashmi

Mishra pursuant to the agreement of sale. It is further contended that

consequent to such request on 17.03.2012 an application was filed by the

defendant/seller before the office of Patwari, wherein the name of purchaser in

place of plaintiff Vipin Kumar Jha, Smt. Rashmi Mishra name was shown and

her signature were also obtained. It is further stated that one Basant Kumar

Dewangan had objected in such proceeding before the office of Tehsildar and

Patwari and thereafter after the said objection was decided on 30.03.2012

permission by the revenue officer to sale the land was granted which was

handed over to the plaintiff along with all the original document including the rin

pustika.

6. The defendant contended that the measurement of the land was already carried

out but after the permission was granted, the plaintiff did not get the sale deed

registered in name of Rashmi Mishra and in the notice which was served to the

defendant this fact was completely concealed and it was projected that the sale

deed to be executed in favour of plaintiff exclusively i.e. Vipin Kumar Jha. It is

further stated that since agreement between the plaintiff and Rashmi Mishra

failed, as such the defendant thereafter never made any effort to get the

permission in his name for executing the sale deed. The defendant further

stated that since time was the essence of the contract as such the sale deed

could not be executed for the fault of the plaintiff alone. The defendant also

contended that since permission from the revenue authority for execution of the

sale deed was obtained in favour of Rashmi Mishra as such sale deed could not

be executed in favour of plaintiff. In absence of sch permission for not

consented by Rashmi Mishra, the suit is required to be dismissed.

7. Learned counsel for the appellant would submit that pursuant to the agreement

for sale dated 02.12.2011 Ex. P/1, initially part of sale consideration was

received and the time was fixed to get the sale deed executed till 30.03.2012. It

is contended that one Rashmi Mishra was introduced as purchaser and the

permission from the concerned Patwari, which is a necessary requirement to

get a sale deed register i.e. Column No.14 permission, was obtained in name of

Rashmi Mishra. The permission was granted on 31.03.2012 by the Patwari by

Ex. P/6. He would further submit that in this proceeding an objection though

was raised by one Basant Kumar Dewangan with whom the earlier agreement

was entered by the seller but such objection was dismissed by the revenue

officers and NOC was granted to sell the land in favour of Rashmi Mishra. He

would further submit that column 14 was issued on 31.03.2012 but the sale

deed was not executed despite the fact that all the original documents were

handed over to him. After almost one year a notice Ex. P/7 was issued on

30.04.2013 and though the permission was obtained in the month of March,

2013 no effort was made by the purchaser to get the sale deed registered.

8. The counsel for the appellant would further submit that there is no whisper in

the legal notice served to seller about the subsequent assignment about

Rashmi Mishra. It is stated that instead by notice seller was called to execute

sale deed in favour of the purchaser/plaintiff. The counsel would submit that

the necessary official requirement to get the sale deed registered was initiated

at the instance of purchaser to get the column No.14 requirement in name of

Rashmi Mishra. It is stated in such proceeding though Basant Kumar

Dewangan made objection but it was overruled which was in konwledge of

plaintiff. It is contended that these facts were well within the knowledge of the

purchaser, therefore, the finding of the trial Court that the seller suppressed the

fact of previous agreement is defeated by the evidence available in this case.

He would further submit that the document along with the original rin pustika

was handed over to the plaintiff/purchaser on 31.03.2012 which is admitted by

the DW-1, wherein the permission was given by the revenue officer to get the

sale deed in favour of Rashmi Mishra but till one year the purchaser became

silent. He would further submit that the sale deed though was to be executed

as per permission in favour of Rashmi Mishra but nothing has been placed on

record to show that Rashmi Mishra has sufficient fund instead the

plaintiff/purchaser has come out with his evidence that he has sufficient fund,

therefore, when the permission from revenue authorities was in favour of

Rashmi Mishra, the sale deed could not have been executed in favour of Vipin

Kumar Jha for want of permission and necessary revenue requirement.

9. He would further submit that the plaintiff only wanted to make money as he

wanted to sale it to Rashmi Mishra @ 195/- per sq. feet, therefore, he was not a

bonafide purchaser. Further it is submitted that in respect of the objection by

Basant Kumar Dewangan no suit was filed by him within a period of three years

for specific performance as such the objection by Basant Kumar Dewangan

when was dismissed it attained its finality, therefore, finding of trial Court is bad

and the judgment and decree passed by the trial Court is required to be set

aside.

10. Per contra, learned counsel for the respondent/plaintiff would submit that the

willingness to perform his part of contract is to be adjudged on the principle of

doctrine of probability of willingness. He would further submit that readiness

and willingness are required to be seen according to the terms of contract.

Referring to Ex. P/1 clause 3 he would submit that it contains a condition that

sale deed could be executed in favour of the plaintiff or any other person and

further it contains a condition that if there is a dispute with a third party, the sale

deed would be executed after dispute is resolved. He would further submit that

during the proceeding to obtain the necessary form before the revenue

authority, the earlier agreement executed in favour of Basant Kumar Dewangan

came to fore when he made the objection. It is stated that the plaintiff was

given an understanding that after the dispute is resolved with Basant Kumar

Dewangan sale deed would be executed and admittedly the consideration of

the entire sale would be according to the available area. It is further submitted

that the defendant admitted the fact that no measurement of plot was carried

out so seller was at fault. It is stated that approximately the area was 13940 sq.

feet and the total sale consideration would be around Rs.21 Lakhs. Out of sale

consideration of Rs.5 Lakhs having been paid and rest Rs. 16 Lakhs was

available with the plaintiff, which was proved by copy of pass book. He would

further submit that the equity do not lie in favour of the defendant as the

defendant did not perform his part of contract and the specific finding has been

given by the trial Court to this issue. It is stated that even if the second view is

possible in appeal, the finding of the trial Court cannot be overlooked. He

would further submit that only on the mere surmise the specific performance of

contract cannot be denied and the conduct of the defendant was required to be

evaluated as such the judgment and decree by the Court below is well merited.

The counsel placed reliance upon the decisions rendered in the cases of

Jaspal Kaur Cheema and another Versus Industrial Trade Links and

others {(2017) 8 SCC 592}, A. Kanthamani Versus Nasreen Ahmed {(2017)

4 SCC 654}, I.S. Sikandar (DEAD) BY LRS. Versus K. Subramani and

others {2013 (15) SCC 27}, Aniglase Yohannan Versus Ramlatha and

others {(2005) 7 SCC 534} and P.D'souza Versus Shondrilo Naidu {(2004) 6

SCC 649}.

11. We have heard learned counsel for the parties and perused the documents.

12. The Ex. P/1 is the agreement. Initially the sale consideration of Rs.3,51,000/-

was paid and the rest of the amount of Rs.1,50,000/- was subsequently paid as

a part of performance of the contract is not in dispute. Clause 3 of the

agreement contains a condition that the sale deed would be executed by 31 st of

March, 2012 in name of purchaser i.e. Vipin Kumar Jha or in name of any other

person according to choice of purchaser. Clause 4 of the agreement further

contains a clause that seller would make available the map, B-1, revenue

record of Form 14 no. column, Khasra Panchshala and Rin Pustika. It contains

a clause that after availability it would be given to the purchaser before the

Registry. Clause 7 of the agreement also contains that on the date i.e.

02.12.2011 "no valid agreement" is existing in respect of the subject land. The

clause also contains in the agreement that in case of any dispute over the land

the same was required to be solved and after that the sale deed would be

executed.

13. The documents would show that the public notice was made by Ex. P/2 inviting

objection. Importantly, Ex. P/5 document, produced by the purchaser/plaintiff

shows that one Rashmi Mishra was introduced as a purchaser by the

purchaser. Thereafter Ex. P/6 would show that it is an information of column 14

which is required for registration of the sale deed was issued in name of

Rashmi Mishra at the instance of purchaser. Reading of statement of Vipin

Kumar Jha (PW-1) at para 7, along with part of document Ex. D/11 would show

that the permission from the revenue authority of column No.14 was obtained in

name of Rashmi Mishra at the behest of the plaintiff himself. Therefore, an

admission of the plaintiff exists that at his instance sale to be made in name of

Rashmi Mishra, the proceedings before the revenue authorities were drawn.

14. The perusal of the document Ex. D/4 (permission from Tehsildar) would show

that in such proceeding for permission, objection was made by one Basant

Kumar Dewangan on the ground that a prior agreement dated 03.06.2008 is

existing in respect of same land and sale of that was required to be done till

30.09.2008. After consideration of objection the Tehsildar by its order dated

30.03.2012 held that only by agreement no right would accrue to Basant Kumar

Dewangan and NOC was granted to provide necessary revenue record to

Saurabh Agrawal. There is nothing on record to show that the said order was

subject of appeal. Therefore, the objection raised by Basant Kumar Dewangan

on the basis of agreement dated 03.08.2008 was dismissed. The submission of

the appellant that there was no valid agreement as on 02.12.2012 appears to

be logical in view of the grounds of Article 54 of the Limitation Act, 1963 as

there is no evidence on record that any suit was filed by Basant Kumar

Dewangan for any specific performance of suit.

15. The document Ex. P/6 is an information of column 14 which is required at the

time of registration of the sale deed. The perusal of the said document would

show in this document, Smt. Rashmi Mishra is shown as a purchaser and

Saurabh Agrawal as a seller. The document Ex. P/5 is an identification

document which also contains photographs and signature of the seller as

Saurabh Agrawal and purchaser as Rashmi Mishra which is endorsed by the

revenue authorities. The copy of the account to show that the plaintiff has

sufficient fund to purchase the land has been exhibited as Ex. P/10. There is

no document or account statement of Rashmi Mishra to show that the fund is

available with her, in whose favour the sale deed was to be executed. The

agreement was executed in between Vipin Kumar Jha as purchaser and

Saurabh Agrawal as a seller. Section 3 of the Prohibition of Benami Property

Transactions Act, 1988 prohibits that no person shall enter into any benami

transaction and benami transaction includes the transaction and agreement

where a property is transferred or is held by a person and the consideration for

such property has been provided or paid by another person. Therefore, on the

basis of the agreement and the contents thereof in absence of any document to

show that Rashmi Mishra had sufficient fund, the very nature of the agreement

Ex. P/1 would be eclipsed under Section 3 of the Act, 1988.

16. The another aspect which also requires to be noticed that the plaintiff in his

deposition at para 7 has admitted that before the sale deed could be executed,

the necessary permission was asked to be taken out in name of Rashmi Mishra

and it was at his behest. The plaintiff further contended that the said

permission was given to him on 31st of March, 2012 at 6' pm.

17. Therefore, if such permission by the revenue authority was a necessary and

was a mandatory requirement for registration of the sale deed then the notice of

the plaintiff Ex. P/7 for execution of sale in favour of Vipin Kumar Jha on

30.04.2013, contradict the stand of the plaintiff itself because at one hand the

permission for registration of the sale deed by the revenue authorities was

obtained in favour of Rashmi Mishra but the notice served by the plaintiff vide

Ex. P-7 dated 30.04.2013 purports that the plaintiff is ready and willing to

purchase the property and the sale deed should have been executed in his

name.

18. We are unable to understand that such contradictory stand of plaintiff that at

one hand the permission to get the sale deed in favour of Rashmi Mishra was

obtained after a long process then at last moment if internal arrangement failed

between Rashmi Mishra and the plaintiff, then at last moment how it is expected

that the sale deed could have been registered in favour of plaintiff Vipin Kumar

Jha, when his name never existed in column 14 description i.e. of Revenue

paper, which was necessary for registration. The seller definitely cannot be

blamed for it as it is for the purchaser who himself invited such situation.

19. Ex. P/11 is a notice served to Rashmi Mishra by the seller Saurabh Agrawal. In

reply to this notice Ex. P/12 Rashmi Mishra replied that she was ready to get

the sale deed executed but some dispute arose with Vipin Kumar Jha, as such

sale deed could not be registered. In reply it is further stated that she got

herself separated from the said transaction and Vipin Kumar Jha was made free

to get the sale deed executed in name of any other person. The said fact is

corroborated by the statement of PW-1 Vipin Kumar Jha at para 42 & 44

wherein the plaintiff has deposed firstly about the conclusion of the complaint

made by Basant Kumar Dewangan and subsequently he admitted the fact that

no valid agreement was existing on 02.12.2011; and further explained and

elaborated that it would mean to show that no other agreement would have

been held valid except that with plaintiff. Further the plaintiff admitted the fact

that notice of fact about cancellation of the agreement with Rashmi Mishra, it

was not given in writing to the seller at any point of time but plaintiff tried to

convey it orally. Reading of the judgment at para 11 it would show that the

learned trial Court misdirected itself as if seller was required to execute the sale

deed in favour of Vipin Kumar Jha not Rashmi Mishra. Such findings are

contradictory to the statement of the plaintiff. The facts shows that the entire

effort was made at the behest of the plaintiff/purchaser to get permission from

revenue authorities in name of Rashmi Mishra for registration of sale deed and

the said permission & necessary document i.e. column 14 particulars having

been obtained, the sale deed could not be executed in favour of Rashmi Mishra

as some dispute occurred in between Vipin Kumar Jha and Rashmi Mishra.

Therefore, in alternate, notice was served to get the sale deed executed in his

favour without any permission of the Revenue Authorities.

20. The citation on which the appellant and respondent have relied the principles

laid down therein about the specific enforcibility of the agreement and the use of

discretionary power of the Court including the conduct of the parties are not in

dispute. We have given our conscious consideration of those dictum in the

facts of this case.

21. The Supreme Court in the case of I.S. Sikandar (DEAD) BY LRS. Versus K.

Subramani and others {2013 (15) SCC 27} observed that court is not

commonly bound to grant such relief, if merely it is lawful to do so, and such

discretion cannot be arbitrarily refused but on sound and reasonable grounds,

guided by judicial principles and capable of correction by the court of appeal. It

further held that any suit for specific performance is an equitable relief and the

Court has to strike a balance of equities between the parties keeping in view the

relevant aspects, including the lapses that occurred in the facts of the case.

22. Applying the aforesaid principles it appears that the plaintiff/purchaser though

entered into an agreement for purchase of the land @ Rs.150/- sq. feet but

subsequently introduced one Rashmi Mishra with whom he entered into the

agreement to sale at the higher price and the permission from revenue

authorities were also obtained at the behest of plaintiff. However, at the

eleventh hour the transaction failed in between the plaintiff and Rashmi Mishra.

Then he tried to get the sale deed executed in his favour without any necessary

document from revenue authorities which are required for registration of sale

deed. It was after one year of 31.03.2012, after the necessary document was

issued under column No.14 by the revenue authorities showing Saurabh

Agrawal as seller and Rashmi Mishra as purchaser, a notice was served by

respondent on 30.04.2013 for specific performance of sale deed to the

appellant. Therefore, the plaintiff has to blame himself for the lapses in the

facts of this case. Accordingly, we are of the opinion that the judgment and

decree for specific performance passed by the Court below requires

interference. Therefore, in our considered view, the judgment and decree of the

Court below is required to be set aside and accordingly it is ordered.

23. The facts would show that the plaintiff has paid an amount of Rs.5,01,000/- in

the month of December, 2011, no efforts have been made by the appellant to

return or he has shown any gesture to return the same. Since we have

declined to issue the decree for specific performance, therefore, at the same

time it may not lead to unjust enrichment to the appellant. Unjust enrichment

could be defined as a benefit obtained from another, not intended as a gift and

not legally justifiable, for which the beneficiary must make restitution or

recompense.

24. The Supreme Court in the case of Indian Council for Enviro-legal Action

Versus Union of India and others {(2011) 8 SCC 161} discussed different

case-laws. Few of the paras i.e. para Nos.152, 153, 154, 155 & 156 are

reproduced hereinbelow:-

152. Unjust enrichment' has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.

153. Unjust enrichment is "the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer" and "even though he may have received [it] honestly in the first instance." (Schock v. Nash (732 A 2d 217) Delware 1999), 232-33.

154. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. In the leading case of Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1942] 2 All ER 122, Lord Wright stated the principle thus :

"....(A)ny civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution."

155. Lord Denning also stated in Nelson v. Larholt, [1947] 2 All ER 751 as under:-

"......It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular frame-work. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution, if the justice of the case so requires."

156. The above principle has been accepted in India. This Court in several cases has applied the doctrine of unjust enrichment.

25. Since the money is in the hold of the appellant, we are of the opinion that the

respondent has a right of restitution and he cannot be deprived of the said

amount. The Supreme Court has observed that the restitution and unjust

enrichment have to be viewed in two stages i.e. Pre-suit and post-suit. In the

pre-suit position the amount is not returned and also in the post-suit the amount

is still with the appellant. If we look into other angel that the appellant has

borrowed the money from the nationalized bank, what the bank would demand.

Therefore, by applying the principles of justice and equity and to make it as an

incentive for the appellant and to implement in practical terms in concept of

time, value and money, we deem it appropriate to grant an interest @ 6 % p.a.

from the year 2011 at the interval of three years. Meaning thereby interest paid

on principle and the previously accumulated interest would be calculated at an

interval of a period of three years.

26. The appeal is allowed partly. In the facts of the case the parties shall bear their

own costs.

27. A decree be drawn accordingly.

                     Sd/-                                                    Sd/-


            (Goutam Bhaduri)                                            (Rajani Dubey)
              JUDGE                                                      JUDGE
Ashu